Blogging politics, culture, sociology and life from Brisvegas
The High Court decision has been handed down.
By a 5-2 majority, the Court ruled that WorkChoices is validly based on the corporations power of the Constitution (Gleeson CJ, Gummow, Hayne, Heyden and Crennan JJ; Kirby J and Callinan J dissenting).
The Court’s media release is here, and the decision itself is here.
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Crennan dissented, not Callinan (hell will freeze over before he takes a line contrary to the Howard Government).
No, I was right. Read the decision. The three judgments are (and I quote):
Spiros is just parroting the Leftist line on Callinan J’s ‘capital A’ appointment, without any reference to his actual judgments. Hell froze over some time ago, Spiros.
There’s a degree of irony here because the Howard government wanted, and got, a true conservative – Callinan’s dissent is largely along federalist lines. Would that we actually had a conservative Federal government!
BBB
OK I was wrong. I apologise. That will teach me to to trust information from the News Limited site.
“Two dissenting judgments came from Justices Michael Kirby and Susan Crennan.”
It appears that hell has froxen over, global warming notwithstanding. Apologies to Callinan too.
I was initially stunned Callinan dissented, but it makes some sense: he’s lined up with Kirby, but on a states rights approach, treating the industrial relations powers as an implied negative limitation on on the corporations power.
There’s a sensible line of cosnervative traditonalist reasoning here: Callinan is quite right to assume that is precisely what the founders of the constitution were trying to achieve – Commonwealth power over interstate disputes.
Having said that, the majority have taken a modernising view of the power, and I dont actually have a great problem with that. Tories will rue this day too!
In any case, there’s still no fully ‘national’ system. Relying on the corporations power means Workchoices cant and wont apply to employees of sole traders and partnerships, and to great numbers of state government employees – and thats about 20-25% of the workforce.
Apologies to you, Spiros. I thought it was an assumption on your part, not reliance on a news source.
BBB
The story Spiros read is here, and it still hasn’t been corrected.
Another success for branch stacking.
Everyone watching the case knew that Callinan J would find the Act unconstitutional (he’s Australia’s biggest states-righter, after all). Kirby J was the second-most likely to knock it down. But it looks like neither of them succeeded in persuading their bretheren (and whatever the female equivalent of that word is).
I think its a good outcome. The last thing we needed was the High Court acting like the pre-2005 senate and making Howard look like a moderate.
But the ALP must win the next election. My pessimism knows no bounds, but Howard has never looked more beatable: he’s yesterday’s man on Climate Change and Iraq, an extremist on industrual relations, and overrated on interest rates.
Beazer better step up to plate.
Sistern.
where are these capital C conservatives when you want them.
no-one in the Liberal party has cottoned onto what the ALP will do with these powers.
Idiots
Another win for the hard-working, aspirational people of Australia!
And with Howard poised to romp home the next election in a doddle, this new realignment is going to be set in stone! I can’t wait!
Yeah, laid off the drop of a hat (cos there’s “no work” at Xmas time, is there?).
How much better can it get for working families??
“Beazer better step up to plate.”
Yeh, and go past the pork pies,chips and stick with the salads.
Heard one guy on radio claim this decision reduces States to local government status. We have ended up with the english system via stealth. Now isn’t that a big change, without even a referendum?
Now there’s no hiding from Howard’s IR regime.
For employees the stakes of the next election have risen very high indeed.
Disturbingly, sometimes one’s prayers are answered.
Katz,
The real pity here is that there will be no hiding from the next Labor government’s IR regime. If the Greens have the balance of power, as is possible, the real risk is that the Greens will say that it has to be even more left wing than the ALP will legislate. That is truly scary.
Personally, I think we need to move for a referendum – but the chances of a Federal Government, of whichever stripe, initiating a referendum to limit their own power would be somewhere between Buckley’s and none.
AR, I think that, essentially, you and I agree on this issue.
This decision represents an enormous increase in commonwealth power. It is a breach of the spirit of the Constitution in that there is an actual section in the Constitution that defines (and limits) the scope of the competence of the Commonwealth over Industrial Relations.
It will be interesting to see what powers the Commonwealth cannot take under the cover of Corporations Law. What about education? Police? State legal systems?
If the Constitution is to be changed, it is up to the people to decide that by referendum.
This decision is a mockery of Australian Constitutional law.
I think this proves the High Court is far from independent and that there is no hope for Australian society at large. Not with these mongrels in the Prime Ministers Office and not with these mongrels on the bench that don’t have an ethical bone in their body.
I sincerely hope there is a change in government come election time otherwise I might have to start encouraging coups. Failing a change, I will settle for a cross-bench in the House and the Senate but I will be classing Nationals and Liberals as the one party.
“This decision is a mockery of Australian Constitutional law.”
Or, alternatively, well-grounded therein, I guess. Given that the overwhelming majority of constitutional law pundits have been predicting this very outcome since the states brought the case, it’s difficult to sustain some notion of startlingly aberrant deliberation going on.
Ken Parish has an interesting take on the judgment over at Troppo.
http://www.clubtroppo.com.au/2006/11/14/blogging-the-work-choices-decision/
It doesn’t take much acuity to recognise the decision as both “well grounded” and a mockery.
Why did the framers of the Constitution propose and why did the people who voted for the Constitution agree to a Constitution that contained provisions for and limitations to Commonwealth industrial relations powers?
It is undoubted that the Corporations powers may be put to the uses to which they will be put, including to an as yet undetermined range of other uses.
The High Court has played lawyers’ tricks on the intentions of the Constitution framers and the citizens who voted for it.
I was actually going to post a new thread on this topic under the title “The Strange Death of Australian Federalism”, but Atticus got in first.
The legal point at issue is the Commonwealth’s ability to use the Corporations power to overule State legislation and arrogate policymaking powers which have previously been seen as States’ prerogatives. Greg Craven (and Katz) are almost certainly right in stating that this has ramifications going way beyond the question of IR laws. According to Craven:
Ironically, in the early 1990s Australia’s peak conservation bodies were leading the call for the then Labor Federal government to utilise the Corporations power to establish national control of environmental policymaking at the expense of recalcitrant state governments. The view of the environmental lawyers at that time was that there would be very little activity of significance which the Commonwealth could not get a handle on with the Corporations power.
The Constitutional lawyers will be able to enlighten us further on these matters, but it seems to me that we now have a grossly unsatisfactory Constitutional situation where there are now only minimal restrictions on the Commonwealth’s power to legislate in a whole range of areas, combined with a serious lack of guidance in the Constitution as to the circumstances under which the Commonwealth should act and the circumstances under which policymaking is best left to the States, thereby opening up the possibility for wild and essentially politically driven vacillations between dramatic and heavy-handed Commonwealth intervention in issues where this is seen as advantageous, and Commonwealth duck-shoving to States where the issue is difficult and the main imperative becomes blame-shifting. To some extent this has been going on ever since the expansion of Commonwealth powers in the Koowarta and Tasmanian Dams cases in the early 1980s, but today’s decision will vastly increase the opportunities for it to occur.
“If the Greens have the balance of power, as is possible, the real risk is that the Greens will say that it has to be even more left wing than the ALP will legislate. That is truly scary.”
hm. If Labor wins the next election we’ll be back at the polls for a double-dissolution in 2008/09. IR’s likely to be one of the trigger bills, so they may get it through without any support at all from minor parties.
BTW, anyone know offhand if a DD election can be called *before* a new senate takes office? For instance,the current Senate endures until 30 June 2008. If Labor takes office in, say, Oct 2007, and has everything rejected, can a DD election be held in early 2008? Or do they have to wait until the new Senate rejects the bills twice?
vee,
The majority decision is highly conventional. There is nothing in it which discloses some special connection with the Howard goverment. You’ll see that the majority in part relies on Justice Mary Gaudron’s reasoning in an earlier case. I’m not sure what you would say about her connections with the Howard goverment, but I can assure there is not much love lost between the two.
No one can help you if you think this decision proves that there is ‘no hope for Australian society at large’.
Finally, are you the same vee who is over at Ken Parish’s site saying that centralising legislative power in the Commonwealth is the same thing as ‘communism’? That sure is a cracker.
BBB
Katz,
It’s interesting to see lefties jump up and down on this one on the basis of original intent arguments. These people very rarely get stuck in the High Court for its absurd ‘implied rights’ frolicks. To be fair, they are not wholly comparable, but it is nevertheless curious that the left, which is generally quite happy for Kirby J to make new stuff up all the time, lose it when the Gleeson CJ’s and Hayne J’s get up to the same caper.
Also, the left historically has been happy for the High Court to expand the Commonwealth’s legislative power with respect to foreign affairs so that it touches every single thing a legislature can do. This is a strange contradiction. How to explain it?
BBB
Yes it is the same person. I clearly note that we called it Communism and did not say it was Communism.
I do not doubt the legal validity of it, I doubt whether it is just.
Well there is hope, if the government changes come election time but if not then that’s that.
So are the High Court wigsters on AWAs or are their workplace conditions set through collective bargining?
“You’ll see that the majority in part relies on Justice Mary Gaudron’s reasoning in an earlier case. ”
Then, quite obviously, these dreadful, constitution-wrecking, RWDB justices have misunderstood her Honour’s reasoning, BBB…….
So BBB, Katz = TEH LEFT.
Some argument, some strawman.
Do you want to argue with me, or TEH LEFT?
I agree it breaks federalism in two. It worth remembering that the IR power was expressly limited because Conservatives and liberals in 1901 were terrified of the prospect of a labour federal government.
Old conservatives like CAllinan are still worried by this.
Having said that, this result was entirely predictable, looking at the line of cases including Vic v Cth over Keatings EBA legislation. No real surprises here.
But the only truly national system will come with state referral of IR poweers. Though I imagine the CTh is relying on the idea that state control over employees of sole traders/ partnerships will, at 20% of the workforce or so, be too insignficant to maintain separate systems.
Kirby’s judgement seemed quite scathing – for example:
It is a sad day for the “states-rights” brigade, that’s for sure. Are there any areas of state administration that are not potentially affected by this ridiculous decision?
Katz,
I can’t really argue with ‘teh left’, which is why I directed the comment to you. It’s a useful label sometimes, just like ‘teh right’ is useful sometimes. In any case, I didn’t say you were ‘teh left’. There is no strawman because there was no argument as such; my post was observational more than anything else (and unoriginal at that).
But I agree it’s probably of no further use to use ‘teh left’ here. So do you, Katz, think that Tasmanian Dams or ACT v Cth were mockeries of Australian constitutional law?
Yes, as Paul points out, we now have a constitutional basis for a national carbon trading scheme (if we didnt have already have one under external affairs). Its not all bad news.
This may sound heretical, but bugger the states! We were never going to win this IR battle in the courts, or by relying on ever diminishing state government power. I think a dispassionate analysis (ie leaving aside the fact that Ratty is currently on top, with an unusual senate majority) would leave progressives few regrets that the old federalism is being left behind.
“…time will not be wasted over such fairytales.”
BBB, I don’t think that the Dams Case was a mockery, but I believe it was an incorrect extension of the external powers provision.
This may be distinguished from the present case in that the High Court has seemingly ignored the existence of constitutional limitations on the application of IR powers that are explicitly written into the constitution.
I don’t know enough about the ACT case.
Katz, in fairness the rot set in with the Franklin Dams Case in 1983 where the High Court allowed the Commonwealth the extend its powers over the States through the use of the Foreign Affairs power, or perhaps even earlier with the Tax cases of the 1940s. Even with the conciliation and arbitration power there was, as Kirby documents, a continuous push to extend federal jurisdiction beyond what had been contemplated by the framers of the Constitution right from the start.
Also Keating relied, in part, on the Corporations power, as well as the Foreign Affairs power, in framing the Industrial Relations Act 1991 so I think that the writing has been on the wall for conciliation and arbitration power for some time.
LeftyE, I wouldn’t be surprised if a little industry grew up among lawyers of assisting sole traders and partnerships that wanted to escape from State regulation to incorporate so as to be covered by the federal legislation. I’m sure that the Howard government would be glad to oblige with any legislative changes necessary to facilitate this.
Actually I would have thougth that the Engineers’ Case made a mockery of the Constitution (or, at least, the intentions of its drafters) and that this case was simply carrying on the tradition (all be it over 75 years later).
Greg Craven is something of a personal hero, but I can’t let him get away with the line:
Where the hell has he been the last 30 years?! If anything, it goes: income tax -> Commonwealth grants -> intrusion into education and health. It really is a shabby little exercise in scare-mongering.
BBB
I think there is no doubt that a double dissolution will be required to get rid of WorkChoices, unless people are prepared to wait until 2010 for control of the Senate to be wrested from Coalition control.
The question is whether or not Beazers has the guts to do it.
I will be very interested to see what Right Wingers have to say when the wheel turns and all the powers are handed to a Labour Govt, then the boot will be on the other foot,and CL and co will scream like stuck pigs
Whoa John, include a metaphor alert!
Anyway, I’m quite satisfied with my reading of IR and the politics surrounding it.
Indeed; you’re nothing if not self-satisfied.
Just responding to an unsolicited caricature of my views, Rob. And you know I’m always happy to help LP strivers improve their understanding of things.
Im betting you’re right there GregM.
Farewell the non-corporate business sector.
Section 57 (which lays out the guidelines for double dissolutions) says no, they don’t have to wait. The only limitation is that you can’t have a double dissolution within 6 months of the normal expiry of the term of the House of Reps.
Section 13 says that an election to fill vacant places in the Senate needs to take place within one year of the expiry of the terms of the Senators. So in the case you mention, it would be OK to hold the Senate election.
1974 and 1975 were both double dissolutions – so there were some Senators in 1975 who had five years left on their terms. Presumably this means that a double dissolution election can be held, no matter how long a Senate has left.
So if the ALP wanted to play hardball, it looks like they could do what you suggest.
I’m grumpy about this but see some potential ray of hope in the new ‘ left’ ( Kirby) and ‘right’, ( Callinan) emergent opposition. Iv’e written an article at MIM called ‘ Fork the State’ and it may be found in the lower newswire.
I’ll republish it on my blog later.
This is getting way beyond a joke but sooner or later we’ll get a real ‘ Dread Scott’ and so possible freedom, independence and true direct democracy through a local war-of-independence/civil war.
I thought that convention still required that the government wait until the Senate has rejected the bill twice. Not that convention seems to be holding much sway these days…
See Reports of the death of federalism are much exaggerated at Club Troppo.
Or don’t; it’s yet more scoffing at lefties from faux centrist Parish. Yawn.
The big losers are the ACTU, they are the ones that promoted the States to take this unwinnable position. Except Vic which has all its Govt workers on Federal awards. It is just stupid when you think about it, each State with its own complex and costly legal system determining how much a cleaner or welder should be paid.
All this arm flapping must be a carry over from the hysteria about impending climate catastrophes armageddon etc etc
It is, but I don’t think this will be an impediment to Labor calling a double dissolution. There’s no way the Coalition senators will allow Labor to completely dismantle the WorkChoices system, particular in terms of abolishing AWAs.
Not just convention, it is black letter law. In the past, I believe the High Court has ruled that referring a Bill to a Senate committee counts as ‘rejecting or failing to pass’
Three months have to pass between the two rejections.
So in Daryl Rosin’s scenario, the ALP would win office in October 2007, immediately pass a Bill through the lower house and then (presumably) it would be blocked just as quickly.
The ALP could then pass the same Bill through the House in (say) February, and as soon as the Senate failed to pass it immediately, could ask the GG for a double dissolution.
“The ALP could then pass the same Bill through the House in (say) February, and as soon as the Senate failed to pass it immediately, could ask the GG for a double dissolution.”
An intriguing question (well, to me at least) is whether or not the GG would grant the request, given that there’s a whole new half-senate already elected that haven’t been sworn in and will never be sworn in. Which does have a slight touch of ‘perverting the will of the people’ about it.
Just chewing things over in my mind instead of studying…
d
Paddy McGuiness, for once, has got it right, in today’s Oz.
“One day the Labor Party will return to federal power, armed with immense new powers thanks to the High Court’s extraordinary majority decision.”
Exactly. The Liberal Party, drunk on its own hubris, thinks it is going to be the national government forever. But it won’t. One day the wheel will turn and Labor will return to government federally, and the Liberals will return to government in the states. And when the Liberal state premiers are done over every day of the week by an uber-centralist Labor government, they will be able to thank John Howard.
The GG would probably take the view that to deny a DD, if the Government was recommending one and the minimum legal requirements had been met, would be too political and therefore unsafe. I can’t imagine General Jeffery is keen to spend the last years of his life being treated the way that Sir John Kerr was.
However, an ALP Government might decide not to play hardball if the new Senate was going to give them a chance to get them what they want. Elections are expensive for MPs, preselections can get messy and a DD is almost certain to give Greens, Democrats etc more seats.
And there would probably be political pressure on the ALP along the lines that you mention – but that would not come from the GG, at least publically.
David Jackmanson said:
This is partly correct. The High Court has ruled that referring a bill to a committee may constitute a failure to pass the bill, depending on the particular circumstances. It may be that such a reference does not constitute a failure to pass the bill.
Spiros says:
“And when the Liberal state premiers are done over every day of the week by an uber-centralist Labor government, they will be able to thank John Howard”
From the way the lefties are carrying on, shouldn’t they be advocating for the Labor party to abondon a central IR system (if they gain power) and allow the States to set up their own State IR systems all over again.
I’d like to see that.
What did they say about the GST? You can’t unscramble the egg.
Look at the flak Beazley copped over the termination of AWAs.
You couldn’t just throw people back onto state awards – the disruption and cost would be enormous.
It’s here to stay, folks.
Kim! you get the yay for day!
..for the day
What I mean, rog, before you yay too loudly, is that a national IR system is here to stay. The shape it takes under a Labor government may not be to your taste.
And the Labor states are proving just how important they are for the preservation of liberty, civility and the Australian Way of Life.
Ah, Vee, Justice Gummow (who formed part of the joint majority judgment) was appointed by a Labor government. Justice Callinan (who dissented) was appointed by a Coalition government.
Naive attacks asserting that the High Court is politically biased are completely unfounded.
Yes, it’s rather an irony that Tim Fischer called for the appointment of a “Capital C Conservative” to the Court with Justice Callinan in mind. He got what he asked for, but not what he wanted.
Why do you bother with your silly High Caught and your rancid conditions of economy?
The whip, the fleshworms and actionable images of the nutrient tanks are quite sufficient to maximise energy source to worker unit output ratios.
Through aside these seven veils of \”decency\” and get it on really we say to you.
Not that it matters much in the run of long. The dark wing of Boskone will soon cast a dark shadow over Tellus because of the dark wing of Boskone blocking out the closest fusion source to Tellus, thereso casting it into a dark shadow.
But we will admit still some fusion elements at the UV end of the electromagnetic spectrum in certain geographical co-ordinates because we remain curious about certain Tellurian oddities like \”lotions for suntanning\”, \”swimming pools\” and \”Ander Pamelason.\”